Marshall's Paper Trail

June 2, 1993

THE recent release of the late Thurgood Marshall's private papers by the Library of Congress, and the subsequent publication of excerpts in several newspapers, has raised a storm of criticism from his friends, family, and several former colleagues on the United States Supreme Court.

The documents are said to provide a rare glimpse into the inner workings of the high court on important contemporary issues: abortion, criminal and civil rights, and cases affecting homosexuals. The more than 173,000 pages of documents are said to reinforce the image of justices who put a lot of work, energy, even anguish into their decisions.

The papers' insights into the current court's inner workings are an obvious motivation for making the papers public so soon after his death in January. This caught critics of the move off guard. Yet Justice Marshall's contract with the Library, which he signed on Oct. 24, 1991, said that after his death, "the Collection shall be made available to the public at the discretion of the Library." The contract also says, "Use of the materials constituting this gift shall be limited to private study on the prem ises of the Library by researchers or scholars engaged in serious research." The Library's action falls within a reasonable interpretation of the contract.

In a letter to the Librarian of Congress, Chief Justice William Rehnquist noted that a majority of his colleagues felt the release improper and that the Library's action might force donors of judicial papers to archive them elsewhere. That is heavy-handed: The issue lies less in the Library's decision than in the stipulations Marshall set in his contract, something other justices can remedy as they decide how they want their papers handled.

Some argue that laying deliberations bare, as Marshall's papers do, threatens the court's legitimacy in the public's eyes. Yet as Marshall's papers seem to show, making the papers public could have the opposite effect.

The strongest case for the early release is that if his papers contain arguments with the power to effect immediate changes in society, this activist justice would have wanted them in the public domain sooner, not later.

During the final years of his tenure on the high court, Justice Marshall became increasingly isolated philosophically as the court moved to the right. His willingness to leave the release of his papers to the discretion of the Library of Congress, rather than to arbitrary timetables, may well have been his final "dissenting opinion."